On the 20th day of September, 2023, the Governorship Elections Tribunal sitting in Kano set aside INEC’s declaration of Abba Kabir Yusuf as the governor of Kano State in the election conducted on the 18th day of March, 2023.
The decision was met with a lot of condemnation from both the legal and lay environments, and according to pundits, the decision if not quickly set aside, may usher in an era of electoral and judicial anarchy in a country that is already enmeshed in crises of unity, consistency and development.
It is the writer’s view that no electoral decision in recent history attracted as much attention and condemnation as the Kano decision. It is in view of this the writer thinks it desirable to give a summary of the decision with a view to seeing how compatable it is with Electoral Act 2022 and the decisions of the superior courts on the relevant statutory provisions.
The petition was anchored on three grounds. 1) That the 2nd respondent was at the time of the election, not qualified to contest the election. 2) That the election was invalid by non-compliance with the provisions of the Electoral Act and 3) That 2nd respondent was not elected by majority of valid votes cast at the election.
On the ground that Abba Kabir Yusuf was not qualified to contest the election because his name was allegedly not submitted by the party 30 days to the primary election, the tribunal accepted the respondents’ contention in their preliminary objection to the effect that this ground is an internal affair of the party and mainly a pre-election matter in respect of which the tribunal has no jurisdiction. The court then proceeded to hold that even if the evidence before the court proves the failure to submit the name as alleged by the petitioners, the court had no power to make pronouncement in that respect. Consequently, ground was struck out for want of jurisdiction.
The second ground is that the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022, in over 300 polling units. To prove this case, the petitioners called only 31 or 32 witnesses 30 among whom were Polling Unit agents of only 30 of the affected Polling Units. The law as held in a plothera of authorities is that to prove non compliance in several Polling Units, the petitioner is under a duty to call witnesses from each of the Polling Units who saw the non compliance first hand. Despite the reiteration of the above provisions in Obi v INEC and Atiku v INEC, the Kano tribunal shut its eyes the doctrine of judicial precedent and held that it would rely on the documents dumped on the court, investigate same at its Chambers and made findings in respect thereto. The court on its own, analysed the documents and held that all the Polling Units in respect of which the petitioner complained must be cancelled, and the number of PVCs collected in the Polling Units is 231,843. The tribunal, instead of making a pronouncement of inconclusive, considering that the margin between the candidates is less than 231,843, just kept quite on that. It should be noted that the tribunal did not advert its mind to the foundational position of the law of ‘he who assert must prove’ and went ahead to believe that whatever was presented before it by APC was true, and need not be validated by credible witnesses.
The greatest error is from the tribunal’s determination of ground 3 of the petition which alleges that the 2nd respondent was not elected by valid lawful votes at the election. The petitioner’s contention here was that there were several ballot papers that were not stamped, signed or dated for which reason they alleged that the votes were invalid.
As a preliminary point, it should be noted that the petitioners did not plead the number of ballots affected by the alleged non-compliance. The law is that parties are bound by their pleadings.
Section 63 of the Electoral Act provides
“(1) Subject to subsection (2), a ballot paper which does not bear official mark prescribed by the Commission shall not be counted.
(2) If the returning officer is satisfied that a ballot paper which does not bear the official
mark was from a book of ballot papers which was furnished to the presiding officer
of the polling unit in which the vote was cast for use at the election in question, he or she shall, notwithstanding the absence of the official mark, count that ballot paper.”
The petitioners called only one Dr Harbau who alleged that he is an expert, and that he analysed the ballot papers and discovered that they were unsigned, undated or unstamped or affected by a combination of two or more of these. However, the written statement on oath of this witness was filed long after hearing had commenced, and not along with the petition as mandated by the Electoral Act and the case of Obi v Inec decided two weeks ago. Instead of discountenancing the oath of the witness, the court believed him line hook and sinker.
There is no evidence from the Petitioner that any of the ballot papers were rejected by the respective presiding officers, or the collation officers. There is therefore the presumption that they were believed by the officials as having emanated from INEC. Similarly in Boni v Muazu (2004) 16 NWLR PT. 900, the Court of Appeal held that to prove ballot votes stuffing, it is the duty of the petitioners not only to produce the ballot papers allegedly stuffed, they must also produced the particular ballot boxes in which the ballots were stuffed, and same must be demonstrated before the court by bringing out the ballot papers from the boxes and counting them before the court to establish the claim. This did not happen. The court still went ahead to unilaterally cancel the votes, namely 165,763 belonging to the 2nd respondent. With this cancellation, the margin between the parties is 36,766, with Gawuna leading. However, since the court earlier held that the number of collected PVCs in the cancelled polling units is 231,843, the only conclusion is to declare the election inconclusive. The court shut its eyes to this legal position and declared Gawuna, who is not a party in the proceedings, a winner of the election. In the determination of grounds 2 and 3 of the petition, the tribunal refused to follow the precedent in Obi v INEC, Atiku v INEC, AYETOLA V INEC, BONI V MUAZU and several other decisions decided by the superior court. This decision is indeed one of a kind!
The election tribunal is a court of first instance and this decision can be tested at the Court of Appeal and the Supreme Court. I am of the firm view that when this matter goes to the appellate courts, the courts will set aside the decision for not having been made in obeisance to the decisions of the apex court on similar facts.
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